People v. Johnson

• Decision Date: 20 February 1929
• Docket Number: No. 19312.,19312.
• Citation: 333 Ill. 469,165 N.E. 235
• Parties: PEOPLE v. JOHNSON et al.
• Court: Illinois Supreme Court

333 Ill. 469

165 N.E. 235

PEOPLE

v.JOHNSON et al.

No. 19312.

Supreme Court of Illinois.

Feb. 20, 1929.

Error to Circuit Court, De Witt County; D. H. Wamsley, Judge.

Walter Johnson and others were jointly indicted for burglary, of whom Clell May was convicted, and he brings error.

Reversed and remanded.Harley F. Bell and Arthur F. Miller, both of Clinton, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Wirt Herrick, State's Atty., of Farmer City, and Royce A. Kidder, of Springfield, for the People.

DUNN, J.

Clell May was convicted of burglary in the circuit court of De Witt county, and has sued out a writ of error. He was indicted jointly with Ivan Scroggins and Walter Johnson, but was tried alone, Scroggins being at the time in the United States Army, and Johnson serving a term of imprisonment in the State Reformatory at Pontiac for ‘robbery with a gun,’ under the sentence of the Macon county circuit court.

The evidence shows, beyond a reasonable doubt, that during the night of September 30, 1927, the building of John Henneberry, at Wapella, in De Witt county, used as a filling station, was burglariously entered and a cash register, an American Beauty radio, five automobile tires, several cartons of cigarettes, and some candy were stolen. Four of the tires and the cash register were recovered a few days later in a briar patch in the woods about 75 yards off the road, southwest of Decatur. The other articles stolen were not recovered. The plaintiff in error was 23 years old.

Walter Johnson was brought from the State Reformatory by means of a writ of habeas corpus, and testified that he was 20 years old, had known the plaintiff in error about 1 1/2 or 2 years, and had run around with him once in a while. On the night of September 30, 1927, he was staying in a house on the Southside drive, near Decatur, 23 or 24 miles from Clinton. He did not remember seeing the plaintiff in error that night, but saw him the next morning about 8 o'clock, or perhaps 7. When he woke up, May and Scroggins were sitting outside in a car. They came to the door and knocked. He let them in, and had a conversation with them there. They said they had been waiting until he got up, and asked if they could leave some staff in the basement-a cash register, automobile tires, and radio. He saw the things there, and told them he did not want them in the basement, and they took them away. He asked them where they got the property, and they said they ‘made a place.’ He testified that afterwards, in a conversation about the radio, May or Scroggins told him that they sold the radio in Springfield to a woman who lived over a theater or something.

At the request of the state's attorney, the court, over the objection of the plaintiff in error, called Florence Ford as a witness. The state's attorney, in requesting the court to call her, stated that about two weeks before the trial she had told certain persons named that she bought an American Beauty radio from Clell May and gave him $30 for it; that she knew where it was, and would get it back so that it might be had for the purpose of the trial, but that a week afterward, at the time when she had agreed to have the radio, she said that she did not buy it, but that a girl working in her rooming house had bought it; that she merely let the girl have $10 for it, and the girl bought it from a tall, curly-headed fellow who was not Doc May; that she knew Clell May, and he did not sell her the radio-that is, she had made two contradictory statements about having bought a radio of the plaintiff in error.

Florence Ford testified that she had lived continuously at 111 1/2 North Sixth street, in Springfield, for 9 years, and had known the plaintiff in error over 1 year, but had no business dealings with him shortly after October 1 last year, and did not buy a radio from him. ‘He was with the fellow. I got it from a tall, curly-headed fellow some time in October. It was an American Beauty radio with a loud speaker.’ She was then cross-examined by the state's attorney, and said: ‘It was some time in the latter part of October. I did not know the tall, curly-headed fellow. It is the defendant I referred to when I said Doc May. I did not know whether this tall, curly-headed fellow was Ivan Scroggins. I never heard his name. They called him 'Curly,’ was all I know. I had not had any conversation with Clell May prior to that time in regard to buying that radio. * * * I paid the curly-headed fellow the money for the radio. I paid him $30.' She also testified on cross-examination, over the objection of the plaintiff in error, that she had a conversation with Jack Walsh and Wynn Leonard, deputy sheriffs of Sangamon county, J. R. Crum, deputy sheriff of De Witt county, and John Henneberry, the prosecuting witness, on June 9, 1928, in her place of business, but she did not state in their presence that she bought an American Beauty radio from Doc May and paid him $30 for it. These four men were then called by the state's attorney, and testified, over objection, that she did make that statement in the conversation, and this was all the evidence for the prosecution.

The plaintiff in error testified in his own behalf, and denied having any connection with, or knowledge of, the crime or the stolen property, contradicting specifically, and in every detail, the testimony of Johnson tending to incriminate him. He and his father also testified to facts showing an alibi, which, if believed by the jury, would have justified a verdict of not guilty.

[1][2] It is contended that the evidence was not sufficient to prove the defendant's guilt beyond a reasonable doubt. The only legal evidence tending to connect him with the crime is that of Johnson, who was shown to be a convicted felon undergoing imprisonment for one of the highest crimes recognized by the law, and who was indicted jointly with the defendant as an accomplice in the burglary charged. The credit to be given to his testimony was a question which it was the province of the jury, and not the court, to determine, and, if the jurors were convinced by his testimony, together with all the other evidence, facts, and circumstances in the case, beyond a reasonable doubt, that the defendant committed the crime with which he was charged, their verdict of guilty cannot be set aside because not sustained by the evidence.

[3][4][5] The plaintiff in error insists that the court erred in calling Florence Ford as the court's witness and permitting her to be cross-examined and impeached on immaterial maters. The practice of the court's calling a witness at the request of the prosecution in the trial of a criminal case has been recognized, but it has been repeatedly announced that it ought not to be adopted, except where it is shown that otherwise there may be a miscarriage of justice. People v. Cardinelli, 297 Ill. 116, 130 N. E. 355;People v. Dascola, 322 Ill. 473, 153 N. E. 710. The rule which should govern in such case was announced in Carle v. People, 200 Ill. 494, 66 N. E. 32,93 Am. St. Rep. 208, that, where there is an eyewitness to the crime, whose veracity or integrity the state's attorney may doubt, he is not obliged to call such witness, but the court may call him and leave him to cross-examination by either side. This practice, the court said in a subsequent case, ‘should not be extended beyond the limits of the rule announced in Carle v. People, supra, and when the circumstances justify a court in calling a witness the cross-examination should be limited to the issues involved and kept within proper bounds.’ People v. Cleminson, 250 Ill. 135, 95 N. E. 157. The court recognized the gross abuse of the right of cross-examination which occurred in the case last cited, but, in view of the clear and overwhelmingly convincing evidence of the defendant's guilt, refused to reverse the judgment in spite of the manifest error. In the present case the error in the application of the rule is as manifest, but the unquestionably convincing proof of the plaintiff in error's guilt in spite of the error is not manifest. Florence Ford knew nothing about the crime. She was not present at...